Do I need an Appellate Attorney? Part 1: Benefits and Downsides of Trial Counsel Handling the Appeal

Pros

1. You Know the Record Really Well—You Were There!

The first benefit of handling the appeal that you litigated below is that you are master of the record. You were there, after all. Several appellate judges have remarked that one nice thing about having trial counsel involved in the appeal is that they can always answer questions about what happened below, or otherwise answer questions about the facts. Familiarity with the record helps greatly when preparing an appeal.

2. May Be Easier to Identify Issues to Raise on Appeal

On a related note, because you were present at trial, you may know the issues that need to be raised in an appeal. Rather than reviewing the entire record cold, you have noted items to raise in the event of an appeal as the case progresses. These things are in the back of your mind and need only be retrieved and reviewed for an appeal. You may be able to easily and quickly identify issues to raise to the appellate court.

3. Demonstrate Emotion and Plead the Justice Issues Well

Another benefit of handling the appeal is that you are already invested in the case. For these reasons, you may have a more emotional connection with the client’s cause and be able to demonstrate that passion to the appellate court. While appellate courts certainly operate at a more intellectual level, justice and the implications for the parties involved are still considerations of any decision. Trial counsel can often plead these issues better than counsel coming on just for the appeal.

4. Cost

Potentially, one pro of having trial counsel handle the appeal is cost. Perhaps you are already providing a discount to the client for one reason or another. It may be cheaper to have the same attorney handling each stage of the litigation. (However, as indicated below, this is not always the case.)

Cons

1. Competence

While some attorneys may be able to simply pick up a copy of the Colorado Appellate Rules and determine what is required for an appeal, more often than not, lack of experience puts you at a disadvantage. Judges can usually tell a trial lawyer from a seasoned appellate practitioner—sometimes that is because the lawyer doesn’t know what he’s doing. And that lack of competence is reflected in the work product. While you may not have to get up to speed on the record, getting up to speed on appellate procedure can be challenging. Getting up to speed on the style and tone of appellate briefing is even more difficult, as it can take years to learn.

2. Too Much Emphasis on the Facts

Just as knowledge of the facts can be a benefit, it can be a detriment on appeal. Appellate judges often note that when trial counsel handles the appeal, the focus deviates back to factual issues, or can feel like a closing argument. Arguments that were effective in front of a jury or trial judge simply will not be as effective in front of an appellate court because of the nature of appellate review. For the vast majority of cases, the appellate court is going to focus on the important issues of law in the case, and won’t entertain arguments about the facts—is not even particularly interested in all the facts. At the appellate level, the record is set.

3. Acting Like a Trial Lawyer

This con comes up particularly during oral argument. If you have never argued before an appellate court, it may come as a shock how stoic, even cold, the process can be. Similar to the downside about too much emphasis on the facts, the style that appeals to a trial court or a jury is far different from the decorum expected from an appellate advocate. If you are unable to tone down your passion (no fist slams on the podium) or can’t answer the judge’s nuanced questions about the law, you may seem like you either don’t know what you are doing, or that you are trying to hide the fact that the law is not really in your favor.

4. Cost

While it may sometimes cost a client less to have trial counsel handle the appeal, in some instances, it may end up costing more. While you may have a keen awareness about what happened at trial, you may find it difficult to translate those facts into errors that can be reviewed on appeal. Because you may not think of the trial in terms of errors, it may take longer to formulate the issues for appeal. Similarly, appellate practice can be extremely complex. Failure to adhere to the appellate rules can result in increased costs when briefs are stricken or deadlines miscalculated. If you don’t regularly file appeals, careful review of the appellate rules is absolutely essential and will require a lot of time and money (some of which cannot be passed on to the client).

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